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Bulletin | Covid-19

Current State of Civil Procedure in Ontario Courts and Recent Case Law Interpretation of COVID-19 Court Directives

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Litigation Bulletin

1) Introduction and Overview

In response to the COVID-19 pandemic, the regular operation of courts across Ontario has been suspended since the week of March 16, 2020. Numerous directions and notices to the profession have been issued by the different Ontario courts to address the operation of the courts during this time.

In recognition of the fundamental role the courts play in our constitutional democracy, the courts first developed procedures for urgent and emergency matters to be heard remotely during this suspension of operations. Last week, the courts began to expand the matters that will be heard remotely. The details of this expansion vary by subject matter and region.

This bulletin provides an overview of the civil matters the courts in Ontario are hearing during the suspension of operations (with a focus on Toronto where the directives are region-specific), and the procedures put in place for these matters to be heard. The information in this bulletin is current as of April 15, 2020.

This bulletin also provides an analysis of how each of the courts has interpreted the recent directions and notices to the profession. A review of the case law to date reveals four main themes:

1. The courts are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for court proceedings where possible. In a number of instances, the court has sought an interim undertaking or agreement from a responding party to protect the interests of a moving party until the matter can be properly heard.

2. The question of whether and when a matter will be heard remotely is an administrative, and not a legal, determination of the court. Parties should only make submissions about the urgency of a matter when invited to do so by the court, and should not make any further submissions once a determination has been made. Parties should be cognizant that the courts are not operating at fully capacity.

3. Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:

  • were considered urgent prior to the suspension of court operations;
  • are directly related to the COVID-19 pandemic;
  • may interrupt the closing of a real estate transaction;
  • involve a judgment debtor attempting to remove assets;
  • involve the expiry of a government-issued permit; and
  • involve termination of commercial leases.    

The court may also parse out urgent issues within larger matters. Even where a matter is found to be urgent, the court will typically first appoint a judge to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.

4. The courts recognize the difficulties presented by remote hearings and the COVID-19 pandemic, and have demonstrated willingness to relax certain procedural requirements. For example, in some instances the courts have accepted unsworn affidavits, on the condition that the affiant attend the remote hearing and swear or affirm to the truth of the affidavit's contents.

2) Suspension of Limitation Periods and Timelines by the Ontario Government

Effective March 16, 2020, limitation periods and procedural time periods have been suspended in Ontario by government regulation for the duration of the state of emergency that has been declared in the province. The state of emergency was recently extended until May 12, 2020.

The suspensions apply to the following:

  • any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period; and
  • any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, subject to the discretion of the court, tribunal or other decision-maker.

Effective April 16, 2020, the suspensions will no longer apply to provisions of the Construction Act, or of the regulations made under it, if the provisions establish a limitation period or period of time within which any step must be taken in a proceeding, including an intended proceeding.

3) Superior Court of Justice

The Superior Court of Justice (SCJ) suspended all regular operations, effective March 17, 2020, until further notice. All criminal, family, and civil matters scheduled to be heard on or after March 17, 2020 have been adjourned. 

A) Civil Matters Currently Being Heard Remotely

i) Urgent and Emergency Matters

The SCJ continues to hear the urgent and emergency civil matters listed below. The procedure to bring an urgent matter is set out at Part B of the SCJ Notice to the Profession dated March 15, 2020: Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings

1. The following matters related to PUBLIC HEALTH AND SAFETY and COVID-19:

 

  • applications by the Chief Medical Officer of Health for orders in relation to COVID-19;
  • applications to restrain the contravention or continued contravention of an order made under the Health Protection and Promotion Act;
  • applications to enforce orders requiring the seizure of premises, medications or supplies under the Health Protection and Promotion Act;
  • appeals under subsection 35(16) of the Health Protection and Promotion Act;
  • urgent requests for injunctions related to COVID-19; and
  • urgent Divisional Court appeals and requests for judicial review related to COVID-19.   

2. The following CIVIL and COMMERCIAL LIST (Toronto) matters:

  • urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing;    
  • outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.

3. Any other matter that the SCJ deems necessary and appropriate to hear on an urgent basis. The Bar and the public are advised that these matters will be strictly limited.

The SCJ has discretion to decline to schedule for immediate hearing any particular matter described in the above list, if appropriate.

ii) Additional Civil Matters

In addition to urgent matters, the SCJ in Toronto has begun to hear the following civil matters:

1. select pre-trial conferences, which were scheduled to be held between March 16 and May 31, 2020, and have been cancelled due to the court closure. All parties must commit to attending remotely, and confirm that the case is trial ready;

2. rule 7 applications, rule 7 motions, and other applications and motions in writing that are proceeding on consent of all parties; and

3. for class action proceedings: motions in writing, case management conferences, and (subject to approval at a case management conference) select precertification, certification, and post certification motions.

The additional matters to be heard by the SCJ vary by region. A list of additional matters to be heard in other regions, as well as the additional criminal and family matters to be heard in Toronto, can be found in the notices published by the SCJ on April 2, 2020: Superior Court of Justice, Notice and Orders- COVID-19

iii) Procedure for Matters Being Heard Remotely

During the suspension of the court's regular operations, the court will accept filings by email at the specific email addresses indicated in the relevant Notice to the Profession only for those matters that are urgent or have been identified as an additional matter to be heard. Where counsel and parties deliver materials by email, they undertake to file the same materials in paper format, and pay the requisite filing fee, at the court counter when regular court operations resume.

The SCJ has acknowledged that strict compliance with the rules of court may be impossible or impractical due to the difficulties presented by remote hearings and the COVID-19 pandemic. In limited situations, the SCJ will rely upon its inherent jurisdiction to relieve parties from compliance with procedural rules, regulations, and statutes. For example, the SCJ has already directed the following:

1. parties may serve documents by e-mail, where e-mail service is permitted, without obtaining consent or a court order;

2. judgments, endorsements and orders of the court are effective as of the date they are made, unless the judgment, endorsement or order states otherwise. The issuance and entering of a formal order, which may require a physical attendance at a courthouse, is not recommended, unless an issued order is necessary for enforcement purposes. Only orders relating to matters of urgency will be formally issued until the court returns to regular operations; and

3. business attire is appropriate for all matters being heard remotely. Further, it is a best practice to participate in an appropriate surrounding where participants and the court will not be interrupted.

iv) Public and Media Access

Any member of the media or the public who wishes to hear/observe a remote proceeding may email their request to the local courthouse staff in advance of the hearing. The person requesting access should provide their name, the hearing they wish to hear/observe, and their contact information. Every effort will be made to provide the requestor with information on how they may hear/observe the proceeding. Certain proceedings are closed to the media and public by legislation, court order, or rules (e.g., pre-trials and settlement conferences).

Section 136 of the Courts of Justice Act restricts the recording by a member of the public of a court hearing.

The SCJ will seek to post on a public website matters scheduled to be heard by the court, so that the media can choose to hear or observe a proceeding.

B) Matters Not Currently Being Heard Remotely

Matters that are not urgent or have not been identified as an additional matter to be heard will continue to be adjourned until the SCJ resumes normal operations. Counsel and parties are discouraged from physically attending courthouses to file documents in person relating to these matters.

Parties can file Claims or Statements of Claim through the Small Claims Court online filing service (File small claims online), or the Civil Claims Online Portal (File civil case documents online) for Superior Court civil matters. 

i) Jury Duty and Jury Trials

Jury panels for upcoming civil and criminal trials in the SCJ are cancelled for the time being. Persons who have received a summons for jury duty for an upcoming trial, or have been called for jury duty, are instructed not to attend court and advised that the courthouse or jury office will contact them if they need to attend in the future.

C) Recent Case Law

The SCJ has emphasized that the various Notices to the Profession are only guidelines, and that scheduling remains a function of the court's administrative process. As explained in Wang v 2426483 Ontario Limited, 2020 ONSC 2040, beyond a request for an urgent hearing, submissions by counsel regarding the urgency of matters should be brief, and only sent when invited by the court. Parties cannot challenge the scheduling of the hearing itself, and no submissions should be sent after a matter has been scheduled.  

i) Examples of Matters Found to be Non-Urgent

Where a seemingly urgent matter can be addressed by an interim agreement between the parties, the SCJ has declined to schedule an urgent hearing. The SCJ has frequently emphasized the importance of counsel cooperating during these exceptional times to avoid the need for court proceedings where possible. In particular, the SCJ has requested counsel to cooperate during case conferences to achieve interim resolutions and avoid the scheduling of non-urgent hearings.

One example of such a situation is where an undertaking can replace a motion for an interim injunction. In Chu Resto YS Inc. v Greentower Service Inc, 2020 ONSC 1721, the applicant moved for an interlocutory injunction prohibiting its landlord from terminating its lease. This motion was scheduled to be heard on March 26, 2020, but was adjourned due to the suspension of court operations. The landlord had already re-entered the premises and evicted the applicant, and appeared to be showing the premises. The applicant sought an urgent motion for an interim injunction requiring the landlord to maintain the status quo pending the rescheduling of the original injunction motion. Rather than schedule a motion, the court convened a case conference, wherein the landlord undertook to maintain the status quo, provided that the injunction motion was heard within a certain date. The original injunction motion was then scheduled to be heard remotely.

Another example is where the protection of a party's interests in real property, which would otherwise be considered time sensitive, can be protected by an agreement. In 2676547 Ontario Inc. v Elle Mortgage Corporation, 2020 ONSC 2041, the plaintiff appealed a Master's decision discharging the plaintiff's certificate of pending litigation on a piece of land. The plaintiff was seeking specific performance, claiming that the purchaser of the property was not a bona fide purchaser for value without notice. The SCJ decided not to schedule the appeal, noting that since the parties had agreed that the defendants would not sell or transfer the property without an order of the court, the plaintiff's claim to title was sufficiently protected, and the appeal was rendered not time sensitive.

ii) Examples of Matters Found to be Urgent

While the SCJ is urging parties to reach interim solutions via case conferences, where a matter is found to be urgent the court will order a matter to proceed remotely.

Matters may be considered urgent where an urgent hearing had been scheduled prior to the suspension of court operations. In Oppong v Desoro Holdings Inc, 2020 ONSC 1689, the applicant was a dispossessed commercial tenant seeking relief from the forfeiture of its lease for a hair salon by the respondent landlord. An urgent hearing had already been scheduled for March 19, 2020, and the court ordered the matter to proceed on that date via teleconference.

Matters directly related to the COVID-19 pandemic will very likely be found urgent and given the highest priority. In York Condo Corporation No. 419 v Black, 2020 ONSC 2066, the applicant sued for an order requiring the respondents to stop renovating their condominium unit, claiming the renovations were in violation of the condominium's declaration, by-laws, and the applicable laws. In response to the COVID-19 pandemic, the applicant asked for an urgent injunction prohibiting the respondents from having third-party tradespeople attend the building, noting that the majority of the building's residents are seniors. Instead of requesting the respondents to give an undertaking, the SCJ found that the health implications involved made this a matter of great urgency, and convened a case conference via teleconference for later the same day, noting that the court may issue an interim order on that call regardless of whether the respondents participate.

Even in situations which are found to be time sensitive and urgent, the SCJ will seek to hold a case conference in advance of scheduling the urgent motion. In Morris v Onca, 2020 ONSC 1690, a judgment creditor moved for urgent relief to prevent the judgment debtors from continuing to ignore court orders and to repay funds they obtained from her by fraud. The judgment creditor needed the funds in order to close an impending real estate transaction, and had evidence that the judgment debtors were actively moving assets abroad to avoid enforcement efforts. While this matter was found to be clearly urgent and time sensitive, the SCJ first convened a case conference to be held a few days later by telephone for the parties to discuss process issues for the proposed hearing and to agree on a schedule for the motion. 

The court may also parse out a single issue within a larger matter as being urgent, and direct that only this single issue be heard. In Saine v. Niagara Escarpment Commission, 2020 ONSC 2151, the applicant held a permit to construct a driveway in an area of developmental control.The respondents denied the applicant's request to vary this permit, and the applicant intended to bring an application to challenge this decision. While the SCJ found that the appeal itself was not urgent, since the underlying permit was set to expire April 13, 2020, the SCJ found that the limited issue of seeking an extension of that order was urgent, and scheduled a hearing to occur before the permit's expiration.

iii) Examples of Additional Civil Matters to be Heard

While the SCJ has begun to hear non-urgent matters remotely, recent case law suggests that the court may not schedule remote hearings where a party perceives that they may not be able to present their case as effectively as they would in person, which the court considered to be an issue of due process. In the proposed class action Miller v. FSD Pharma, Inc., 2020 ONSC 2253, the parties had a two day precertification motion scheduled for May 4-5, 2020. While defendant’s counsel wished to proceed remotely on the previously scheduled dates, plaintiff’s counsel were reluctant to do so, citing concerns about the logistical difficulties presented by the amount of material required and the inability for counsel to have their entire team in one room. The case management judge adjourned the motion until June 23-24, 2020, noting that he did not want to hold a hearing that in its very format raises questions about due process for the unsuccessful party.

4) Toronto Commercial List

All regular matters on the Toronto Commercial List which have been scheduled and are not urgent or time sensitive have been adjourned to after June 1, 2020, subject to further direction from the court.

A) Matters Currernly Being Heard Remotely

i) Urgent and Emergency Matters

The Toronto Commercial List Users Committee has published the following operational protocol dated March 16, 2020 for Commercial List matters: Changes to Commercial List Operations in Light of COVID-19 (pdf). Among other things, the protocol indicates that the Commercial List will likely consider matters that fall into the following categories to be urgent or time sensitive matters that will be heard:

    1. Initial orders under the CCAA;
    2. CCAA stay extensions (if parties agree, a draft order on consent can be forwarded to the Judge);
    3. Receivership applications;
    4. Plans of arrangement;
    5. Injunctions;
    6. Approval and vesting orders; and
    7. Urgent bankruptcy applications.

ii) Additional Commercial List Matters

Pursuant to the Toronto Region Notice dated April 2, 2020, the Toronto Commercial and Estates List has begun to hear the additional matters listed below:

    1. select motions;
    2. select applications;
    3. case management conferences;
    4. pre-trial conferences; and
    5. judicial settlement conferences.

The Commercial List has not yet provided further guidance on which motions and applications it will hear, and will continue to decide which cases to hear on a case-by-case basis. The Commercial List has indicated it will give preference to urgent matters, time sensitive matters, and matters where there are immediate and significant financial repercussions which may result if there is no judicial hearing. 

iii) Procedure for Matters Being Heard Remotely

Parties may email the Commercial List office to request that a matter be heard urgently. The Commercial List judges will use their discretion to determine which matters are heard remotely. All contested matters will be heard using ZOOM or another videoconference facility. The Commercial List cannot hear any matter of more than 4 hours duration.

Parties should file all necessary materials by emailing the judge hearing the matter and copying the Commercial List office. It is not necessary to file hard copies at this time. The Commercial List has noted that it will accept unworn affidavits prior to the hearing, provided that either a sworn affidavit is later provided prior to the hearing, or that the affiant is available at the hearing to swear the truth of the contents of the affidavit.

The Commercial List will continue to follow the usual process for issuing new claims. Counsel should email the Commercial List office with the statement of claim and ask permission to issue on the Commercial List, and the request will be considered in accordance with the normal process.

5) Small Claims Court

The Small Claims Court has suspended all sittings, effective March 16, 2020, until further notice. All trials, settlement conferences, motions, assessment hearings, garnishment hearings, contempt hearings and examinations, including teleconference hearings and videoconference hearings are adjourned.

A) Matters Currently Being Heard Remotely

Outstanding arrest warrants issued in relation to a finding of contempt are the only matters currently listed as being heard by the Small Claims Court. For these matters, parties should contact the local trial coordinator (pdf).

B) Recent Case Law

Where a Small Claims Court matter other than an outstanding arrest warrant is sufficiently urgent, the SCJ may elect to hear the matter. In Ali v. Tariq, 2020 ONSC 1740, the SCJ scheduled an urgent motion to be heard by teleconference for the defendant to set aside a default judgment made by the Small Claims Court in favour of the plaintiff, and to discharge the writ of seizure and sale related to the default judgment. The writ of seizure and sale had been registered against a property owned by the defendant, the sale of which was scheduled to close the day the motion was heard. The SCJ accepted that the defendant only learned about the default judgment recently, and that the defendant was unable to bring a motion to set aside the default judgment in Small Claims Court given the suspension of its operations. The SCJ discharged the writ of seizure and sale on the condition that the defendant held sufficient funds in trust to pay the judgment, plus costs and interest, but adjourned the motion to set aside default judgment to be heard by the Small Claims Court upon resolution of regular court operations.

6) Divisional Court

The Divisional Court has suspended all regular operations, effective March 17, 2020, until further notice.

A) Matters Currently Being Heard Remotely

i) Urgent and Emergency Matters

The Divisional Court continues to hear urgent appeals and requests for judicial review related to COVID-19.

ii) Non-Urgent Matters

The Divisional Court has begun to schedule hearings on non-urgent matters, subject to available resources.  Parties who wish to have their matter proceed during the suspension of in-person hearings must follow the procedure set out below. Matters previously scheduled for hearing in the coming weeks continue to be suspended. Non-urgent matters will be scheduled in due course, with preference given to urgent and time sensitive matters.

iii) Procudure for Matters Being Heard Remotely

Parties may request to schedule a Divisional Court matter by contacting the court via e-mail, copying all other parties. The procedure for scheduling a Divisional Court matter is set out in Section D.2. of the Notice to the Profession dated April 2, 2020: Notice to the Profession - Divisional Court

Hearings will be conducted remotely either by teleconference  or by videoconference using the application ZOOM. Parties must file electronic copies of all documents, including where parties have filed paper copies of documents prior to the suspension of regular court operations.

B) Matters Not Currently Being Heard Remotely

i) Motions in Wirting for Leave to Appeal to the Divisional Court

Motions for leave to appeal that have been filed with the court prior to the suspension of in-person hearings generally will not be decided during the current suspension of court operations since the files cannot be made available to judge.

If a party considers that a pending motion for leave to appeal (whether the motion was initiated prior to or after the suspension of ordinary court operations) is urgent or time sensitive, that party may e-mail a request to the court for the motion for leave to appeal to proceed forthwith. In this case, the party will be required to make the materials available electronically.

C) Recent Case Law 

Similar to the SCJ, the Divisional Court has shown a preference for parties to come to interim agreements to reduce the number of court appearances required. In Young v. CRC Self Help, 2020 ONSC 1715, a commercial tenant sought to be restored to the premises. The landlord gave an undertaking to not re-lease or give possession of the premises until the final determination of the tenant's motion, which was scheduled to be heard via teleconference.

The Divisional Court has also exercised its discretion where strict compliance with procedural rules regarding affidavits is impossible or impractical. In Young v. CRC Self Help, 2020 ONSC 1715, the Divisional Court held that where the respondent was unable to commission an affidavit in advance of the teleconference, the respondent was required to circulate the finalized version of the affidavit and arrange to have the affiant present on the teleconference, where they would swear or affirm the contents of the affidavit in lieu of filing a sworn copy.

The Divisional Court has also requested parties to use password-protected electronic drop boxes, to which the court is invited, to exchange electronic copies of documents, as in A.G. Ontario v. Information and Privacy Commissioner of Ontario, 2020 ONSC 2175.

In Nation Rise v. Minister of the Environment, 2020 CanLII 25863, the Divisional Court outsourced the coordination of the hearing to the private company Arbitration Place.  

7) Court of Appeal

The Court of Appeal suspended all in-person appeals effective March 17, 2020, and has closed public counter services, both until further notice.

A) All Appeals to be Heard Remotely

The Court of Appeal will contact the parties to matters scheduled for oral argument to determine if the matter will proceed by way of remote hearing, in writing, or a combination of both.

Where parties have previously adjourned a hearing due to the emergency, or for appeals newly perfected, parties can, on consent, contact the court to request an expedited hearing date.

i) Conduct of Remote Appeals

Effective April 14, 2020, all matters heard remotely will follow the procedure set out in the Court of Appeal's Practice Direction dated April 6, 2020:  Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency (pdf).

All remote teleconference and video conference hearings will be held using the application CourtCall. Parties must file all necessary documents by e-mail. Public counter services are closed until further notice.

B) Exceptions to the Suspension of Timelines

In response to the Ontario government regulation extending timelines in proceedings subject to the discretion of the court, the Chief Justice of Ontario has exercised the court's discretion to direct that the extension of time does not apply to the following civil matters:

    1. Urgent family law appeals subject to the Notice About Urgent Family Law Appeals (pdf);
    2. Civil proceedings in which a notice of hearing has been sent and which proceedings have not been adjourned; and
    3. Civil proceedings that are being case managed. The prescribed timelines for such matters continue to apply, without suspension or extension.
    4. The Court of Appeal retains discretion to direct that the regular prescribed timelines apply in a particular case, either on its own motion or on application of a party to the proceeding.

C) Recent Case Law 

The Court of Appeal has demonstrated a preference for matters to be heard remotely (either over videoconference or teleconference, in writing, or by a combination of both) rather than adjourning them, noting that it is not in the interest of justice to overburden the court by adjourning matters that can be dealt with fairly as scheduled.

In Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244, the parties could not agree on how to proceed with an appeal scheduled to be heard during the suspension of normal court operations. The appellant sought to adjourn to the fall so that he could take the panel through the arguments during an in-court oral hearing, noting that he was unable to currently prepare for an oral hearing as his materials were at his law firm, and he did not want to risk his or his employee's health by attending his office to gather them. The respondent requested that the appeal proceed in writing, with an opportunity for the parties to respond to panel questions either by teleconference or videoconference. The Court of Appeal held that the case could be fairly adjudicated in writing, and that further delay would be prejudicial. The Court of Appeal further held that holding a full oral hearing would give the respondent a litigation advantage, given that the appellant could not access his materials and he was not very comfortable using electronic documents.

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